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Re: Tom Tom and Microsofts Linux patent lock-down ..

From: Alan Mackenzie
Subject: Re: Tom Tom and Microsofts Linux patent lock-down ..
Date: Tue, 17 Mar 2009 20:12:01 +0000 (UTC)
User-agent: tin/1.6.2-20030910 ("Pabbay") (UNIX) (FreeBSD/4.11-RELEASE (i386))

In gnu.misc.discuss Rjack <> wrote:
> Rahul Dhesi wrote:
>> Rjack <> writes:
> First.

> I have made a consistent claim in a long history of internet
> postings that, "The GPL is unenforceable under U.S. copyright law".
> These posts consist of legal reasoning presented in the general form
> of the arguments that are presented in U.S. courts. These arguments
> consist chiefly of citations to statutes and prior legal decisions
> (the doctrine of "stare decisis"). The laws passed by the
> legislatures in the United States (both federal and state) mean what
> the men in the black robes say they mean. Why? Because that's the
> way our constitutional system of government is designed.

The GPL cannot be enforced because it is neither a law nor a contract
(see below).

I don't think you would dispute that free software is not public domain.
The mere fact that something, such as a web page, can be downloaded
from the internet does not abolish the copyright in that thing.

I think there have been cases where people have taken others' web pages,
adpated them a bit, illicitly used them for their own purposes and then
been (successfully) sued for copyright violation by the original creators
of the pages.

You are arguing that, by contrast,  it is not copyright violation to
download and adapt free software without the permission of the copyright
holder.  You seem to be arguing that the very act of making ones own
software available on the internet effectively places it in the public
domain.  In your view, what rights do the authors of GPL'd software
retain after releasing it on the internet?

The GPL is not a contract.  The essence of a contract is "a meeting of
minds" where each party accepts obligations, and something of value
passes in both directions.  The authors of GPL software explicitly
exclude any obligation to anybody else, and nothing of value passes
to them by virtue of the license.

I don't even see that a commercially negotiated license is a contract.
It is instead the thing of value which passes from one side to the
other in return for money.  It is something which is governed by a
contract, not a contract itself.

> Recall that I claimed that, "The GPL is unenforceable under U.S.
> copyright law". This has *always* been the point of my posts, that
> the courts in U.S. jurisdictions will not order the illegal terms of
> the GPL to be enforced. So far, the GPL has never been interpreted
> under U.S. copyright law as applied through the application of state
> contract (common law) by a U.S. Some would argue the end justifies
> the means. court.

I don't think there are any cases where a company has been sued for
violating the GPL, and the settlement of the litigation has allowed
that company to continue violating the GPL.

> Some would like to argue the end justifies the means and recast my
> claim to suit their goals ("build a straw man fallacy, "move the
> goalposts", "change the subject"). No amount of extrinsic, non-legal
> argument will settle questions concerning the legal enforceability
> of the GPL in U.S. courts. That question will be answered *only
> after* a court (probably several) of competent jurisdiction
> interprets the legal effect of the GPL under applicable copyright
> and contract law. Ten thousand voluntary dismissals will not settle
> the question of the *legal enforceability* of the GPL -- only a
> court ruling on the specific GPL terms will settle that question.

You are right there.  It seems strange that no company lawyers have
as yet settled a case such that they continue violating the GPL.

> Sincerely,
> Rjack :)

Alan Mackenzie (Nuremberg, Germany).

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